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Banks v. Merit Systems Protection Board

United States Court of Appeals, Federal Circuit

April 18, 2017

PHYLLIS E. BANKS, Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD, Respondent

         Petition for review of the Merit Systems Protection Board in No. SF-0752-16-0381-1-1.

          Phyllis E. Banks, Inglewood, CA, pro se.

          KATRINA Lederer, Office of the General Counsel, Merit Systems Protection Board, Washington, DC, for respondent. Also represented by BRYAN G. POLISUK, Katherine M. Smith.

          Before Prost, Chief Judge, NEWMAN, and Dyk, Circuit Judges.

          Dyk, Circuit Judge.

         Phyllis E. Banks petitions for review of a decision by the Merit Systems Protection Board ("Board") dismissing her appeal for lack of jurisdiction. We affirm.

         Background

         Banks was hired by the Department of Veterans Affairs ("VA") on July 26, 2015, as a Medical Support Assistant. Her appointment was in the excepted service and was subject to a one-year probationary period. On March 2, 2016, within the one-year period, the VA notified Banks that the agency planned to terminate her due to performance issues. Rather than wait for the agency to terminate her, Banks chose to resign her position, effective March 15, 2016.

         Banks appealed to the Board, asserting that her resignation was involuntary and therefore constituted a constructive removal. See, e.g., Cruz v. Dep't of Navy, 934 F.2d 1240, 1244 (Fed. Cir. 1991) (en banc). In an initial decision dismissing Banks's appeal for lack of jurisdiction, the administrative judge ("AJ") found that Banks was not preference eligible and that the record contained no evidence of prior federal service. Given these facts and that Banks was still within her probationary period at the time of her alleged removal, the AJ concluded that Banks was not an "employee" under 5 U.S.C. § 7511(a)(1) with the right to appeal adverse actions to the Board. The Board therefore lacked jurisdiction. The AJ further noted Banks's allegations of a hostile work environment and retaliation, but concluded that these claims did not provide the Board with jurisdiction under 5 U.S.C. § 7702(a) in the absence of non-frivolous allegations of an agency action independently appealable to the Board. See Garcia v. Dep't of Homeland Sec, 437 F.3d 1322, 1335 (Fed. Cir. 2006) (en banc). Banks petitioned the Board for review.

         The Board upheld the AJ's dismissal of Banks's appeal for lack of jurisdiction. In doing so, the Board addressed evidence not considered by the AJ indicating that, prior to being hired by the VA, Banks had been currently and continuously employed by the U.S. Postal Service for approximately three years as a Mail Handler. The Board concluded that this prior federal service did not give Banks a right to appeal because the Postal Service is not an "Executive agency" under 5 U.S.C. § 7511(a)(1)(C)(ii). The Board issued a final order dismissing Banks's appeal for lack of jurisdiction.

         Banks petitioned for review of the Board's final order. We have jurisdiction under 28 U.S.C. § 1295(a)(9).

         Discussion

         We review the Board's jurisdictional determinations de novo and its factual findings for substantial evidence. See Bolton v. Merit Sys. Prot. Bd., 154 F.3d 1313, 1316 (Fed. Cir. 1998). "The Board's statutory interpretations are reviewed for correctness as a matter of law." Ellison v. Merit Sys. Prot. Bd., 7 F.3d 1031, 1034 (Fed. Cir. 1993).

         The Board's jurisdiction is limited and extends only to actions "appealable to the Board under any law, rule, or regulation." 5 U.S.C. § 7701(a). As relevant here, 5 U.S.C. § 7513(d) permits an "employee" to appeal certain adverse actions to the Board, including involuntary resignations that are deemed constructive removals. See, e.g., Cruz, 934 F.2d at 1244. For the purpose of § 7513(d), however, the term "employee" is defined-in relevant part-as "an individual in the excepted service (other than a preference eligible)" who is either "not serving a probationary or trial period, " 5 U.S.C. § 7511(a)(1)(C)(i), or "has completed 2 years of current continuous service ... in an Executive agency, " id. ยง 7511(a)(1)(C)(ii). An individual may qualify as an "employee" ...


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